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Decision No. 16,148

Appeal of T.A., on behalf of her son D.A., from action of the Board of Education of the Salmon River Central School District regarding student discipline.

Decision No. 16,148

(September 2, 2010)

Law Office of Vaughn N. Aldrich, attorneys for petitioner, Vaughn N. Aldrich, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Eric J. Wilson, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Salmon River Central School District (“respondent”) affirming the suspension of D.A.  The appeal must be sustained in part.

During the 2009-2010 school year, D.A. was an 11th-grade student in respondent’s district and a member of the varsity hockey team (“team”).  On the morning of November 27, 2009, D.A. was at the high school to meet the team for a trip to New York City.  Prior to the team’s departure, D.A. and three other students (collectively, “the students”) requested permission from the hockey coach (“coach”) to use the school’s basement weight room.  The students were escorted and admitted to the weight room by the school custodian.  Shortly thereafter, the custodian reported to the coach that he smelled marijuana coming through the lobby from the basement.

By letter dated November 30, 2009, the principal informed petitioner that D.A. was being suspended for five days – Monday, November 30 through Friday, December 4, 2009 – for “using marijuana on school property.”  In a November 30, 2009 letter, petitioner was informed that a superintendent’s hearing was scheduled for December 2, 2009.

At the hearing, the principal, custodian, coach and athletic director testified on respondent’s behalf; no witnesses were called to testify on D.A.’s behalf.  The principal testified that, on November 30, 2009, he questioned D.A., who admitted to being in the basement area on November 27, 2009, but “did not admit to use of marijuana down there.”

The custodian testified that he unlocked the weight room at approximately 8:00 a.m. on November 27, 2009 to admit the students, and that “about five to 10 minutes” later, he detected the odor of marijuana in the area.

The coach testified that he gave the students permission to use the weight room and that approximately five to 10 minutes after the custodian escorted the students to the weight room, the custodian came to get him.  The coach testified that, as they walked to the weight room, he smelled marijuana and that the odor was strongest in the lobby and the elevator shaft area.

The coach further testified that there were no students in the weight room when he arrived; however, after viewing a security camera, the coach identified D.A. and the three other hockey players among the six students who had been in the general area at the time.[1]  The coach testified that he questioned the two other students who appeared on the security camera, but that those students had only visited a nearby bathroom.

The coach stated that he questioned D.A., who “denied ... being somebody that would have smoked pot in that weight room.”  According to the coach, D.A. explained that “he had a pipe ... in his pocket from the night before, that ... they had pulled out of his pocket and supposedly bobbled and dropped and broken [sic] on the floor.”  D.A. further stated that the pipe contained water and marijuana residue, which “would make a mess and ... it would produce that same smell and odor....”  According to the coach, D.A. stated that he and another student (K.B.[2]) cleaned up the broken pipe and threw it outside a nearby door.  The coach also testified that he questioned K.B., who admitted to smoking marijuana at school that day.  The record indicates that respondent found no evidence of a broken pipe or other materials in the area where the incident occurred.

The athletic director testified that, on the morning of November 27, 2009, the coach asked him to come into school to help deal with the incident.  The athletic director stated that he initially spoke with all four students together.  Upon further questioning, two of the students were released.   The athletic director testified that he questioned D.A., who “admitted to bringing in a water pipe” and stated that “we were playing with a water pipe.  We didn’t smoke it but we dropped it.”

By letter dated December 7, 2009, the hearing officer informed the superintendent that she found D.A. guilty of using marijuana on school property and recommended that D.A. be suspended for the remainder of the 2009-2010 school year.  By letter dated December 11, 2009, the superintendent informed petitioner that she was upholding the hearing officer’s finding of guilt, noting that “it is clear that competent and substantial evidence exists to conclude that [D.A.] was using a device used for marijuana.”  The superintendent suspended D.A. from school until November 29, 2010.

On or about December 28, 2009, petitioner appealed the superintendent’s determination to respondent.  By letter dated February 9, 2010, the board clerk informed petitioner that respondent had considered her appeal at its February 8, 2010 meeting and affirmed the suspension.  The letter also informed petitioner that D.A. would be provided with tutoring for the remainder of his suspension and that the principal would monitor D.A.’s progress and consider “possible modifications to his suspension” after March 1, 2010.  This appeal ensued.

Petitioner argues that respondent’s finding of guilt was not supported by substantial evidence and that a suspension until November 29, 2010 was excessive.  Petitioner also maintains that D.A.’s suspension must be annulled because the November 30, 2009 notice failed to specify that he was being charged with the “use of a device” on school property.

Respondent argues that the appeal must be dismissed as untimely.  Respondent also contends that its decision to suspend D.A. was based on competent and substantial evidence and that the penalty was not excessive.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492; Appeal of Wright, 45 id. 356, Decision No. 15,347).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of Johnson, 46 Ed Dept Rep 432, Decision No. 15,555; Appeal of A.W., 46 id. 367, Decision No. 15,535).  While the board’s February 8, 2010 meeting minutes reflect that petitioner’s attorney was present, there is no evidence that petitioner attended that meeting.  The record also indicates that respondent notified petitioner of its determination by letter from the board clerk dated February 9, 2010.  Because the record does not indicate when petitioner received the notice, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be February 16, 2010.  Petitioner’s affidavit of service states that respondent was served on March 11, 2010, within 30 days.  Therefore, I will not dismiss the appeal as untimely.

Petitioner argues that the November 30, 2009 notice, which charged D.A. with “using marijuana,” failed to “give adequate notice of the allegations that were being examined at the hearing, i.e. use of a device.”  I disagree.  The charges in a student disciplinary proceeding need only be "sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing" (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133; Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of H.B., 46 id. 369, Decision No. 15,536).  As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ. of Monticello Cent. School Dist. at 140).  Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against a student (Bd. of Educ. of Monticello Cent. School Dist. at 139; Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of H.B., 46 id. 369, Decision No. 15,536).  D.A.’s suspension occurred as a result of the November 27, 2009 incident at school during which D.A. was in possession of a marijuana pipe containing marijuana residue.  Accordingly, I find that respondent’s notice adequately apprised petitioner of the charge against D.A. and the conduct underlying that charge.

The decision to suspend a student from school pursuant to Education Law §3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of A.W., 46 id. 367, Decision No. 15,535).  Hearsay evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (seeBd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Gray v. Adduci, 73 NY2d 741; Appeal of a Student with a Disability, 45 Ed Dept Rep 396, Decision No. 15,364).  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of N.C., 46 id. 358, Decision No. 15,532).

Moreover, with respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of a hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550; Appeal of P.D., 46 id. 50, Decision No. 14,438). 

Petitioner alleges that the decision to suspend D.A. “was based on inadequate and insufficient evidence” and that the “record is devoid of any proof of marijuana use.”  Pursuant to respondent’s code of conduct (“code”), students may be suspended for conduct that “endangers the safety, morals, health or welfare of others,” including “[p]ossessing, consuming, selling, distributing or exchanging ... illegal substances,” such as marijuana.  As noted above, the principal, coach and athletic director testified that D.A. denied smoking marijuana at school on November 27, 2009.  However, the coach and athletic director testified that D.A. did admit bringing a marijuana pipe to school that day.  The testimony presented at the hearing indicates that the pipe contained some amount of marijuana residue.  The coach and the custodian also testified to smelling marijuana coming from the school basement, where the weight room was located.  There is no evidence that the hearing officer’s determination of credibility is inconsistent with the facts.  To the contrary, the record indicates that the hearing officer also considered the transcript from K.B.’s disciplinary hearing,[3] which corroborates the testimony presented at D.A.’s hearing – that D.A. and K.B. were “playing with” a marijuana pipe containing marijuana residue.  Specifically, K.B. testified that he and D.A. heated the pipe in an attempt to smoke the “resin.”  On the record before me, therefore, I find that respondent based its determination that D.A. was guilty of using marijuana on competent and substantial evidence.

Petitioner contends that a suspension of one calendar year in this case is excessive.  Initially, I note that, in its verified answer, respondent maintains that a suspension of “approximately six (6) months was proportionate to the severity of the conduct involved.”  However, this argument is not responsive to petitioner’s allegation and is contrary to the record, which clearly reflects that D.A. was suspended for approximately one calendar year, rather than six months.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of J.C., 46 Ed Dept Rep 562, Decision No. 15,596; Appeal of C.D. and P.D., 46 id. 459, Decision No. 15,563).  Based on his admitted involvement with the use of a marijuana pipe at school on November 27, 2009, D.A. was found guilty of using marijuana on school property.  While I agree that a significant penalty is appropriate, I find that a penalty of one calendar year is excessive under the circumstances presented in this case.

As noted above, respondent maintains that a suspension of “approximately six (6) months was proportionate to the severity of the conduct involved.”  Moreover, D.A.’s anecdotal record reveals no prior discipline for any serious misconduct.  The principal testified during the penalty phase of D.A.’s hearing that this was his first offense involving the possession or use of illegal drugs on school property and that D.A. had not been involved in any violent incidents at school.  Indeed, it appears that D.A.’s only other disciplinary incident during the 2009-2010 school year was a half-day of in-school suspension for not reporting to class.

Under these circumstances, I find that the seven-month suspension served by D.A. is sufficient to impress upon him the seriousness of his conduct.  Any further suspension of this student is unwarranted at this time and there does not appear to be any purpose served by D.A.’s continued suspension from school during the first half of the 2010-2011 school year.  I note, however, that nothing herein should be construed as minimizing the gravity of D.A.’s actions or the serious safety issues raised by the possession of drugs and related paraphernalia in public schools.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent re-admit D.A. to school in the Salmon River Central School District.

END OF FILE.

[1]  The coach also testified that the district’s surveillance cameras covered neither the entry to the weight room nor the elevator shaft area.

[2] K.B.’s suspension for his involvement in this incident was the subject of a separate appeal to the Commissioner of Education (Appeal of A.B., 50 Ed Dept Rep __, Decision No. 16,147).  As discussed more fully later in this decision, the parties agreed to incorporate the transcript of K.B.’s hearing into the record of D.A.’s disciplinary proceedings.

[3] During the hearing, petitioner’s attorney stated that “I’d ask that in fairness to [D.A.] ... [the hearing officer] review in cameras [sic] by yourself the hearing and the evidence taken with regard to the hearing of [K.B.], and I believe that will provide great insight as to the alleged possession of the pipe.”  In his closing statement, petitioner’s attorney further noted that “I believe if you review the record of [K.B.’s] hearing it will become clear what happened.”